Updated 05/17/2020

Gov Evers has begun the process of establishing an Emergency Rule and




UPDATE: Gov. Tony Evers' administration withdrew its outline Monday, May 18th, 2020 for a new emergency rule to manage the coronavirus pandemic. State Department of Health Services officials notified state Senate President Roger Roth and Assembly Speaker Robin Vos in a letter that they have withdrawn the rule's scope statement from consideration. The letter didn't offer any explanation.

Despite the fact that Gov. Evers said he would meet with Assembly Speaker Robin Vos, Senate Majority Leader Scott Fitzgerald and other leaders during the week, he is continuing to work with the Administration and the Department of Health Services (DHS) to enact an Emergency Rule to protect Wisconsinites from the coronavirus during the COVID-19 pandemic.

DHS has proposed emergency rule-making to address the significant threat to Wisconsin citizens and attempt to bring the outbreak under control, while turning the dial toward reopening the economy. The Administration believes that the decision in Wisconsin Legislature v. Palm makes it necessary for DHS to engage in emergency rule-making in order to address the ongoing public health crisis caused by the COVID-19 pandemic.

Whether you agree or disagree with the actions of the Administration and DHS, you are encouraged you to understand the Statement of Scope and to participate in public comment period.


The proposed emergency rule ("proposed rule") will require giving DHS the power to regulate social distancing because they believe “there is no viable alternative” without a current vaccine or treatment.


While the details have not been released, it appears as though DHS will utilize an approach similar to the Safer at Home order the Badger Bounce Back plan, to create its "proposed rule" and may re-articulate some or all the parameters specified in Badger Bounce Back and balance them against the goals inherent in the Safer-at-Home Extension


According to the information within the Statement of Scope, the "proposed rule" has two objectives: 


  •  “Boxing in” phase of the Badger Bounce Back plan to limit its spread to healthy Wisconsinites.

    • ​The proposed rule is likely to include a variety of measures to achieve that goal consistent with the decision in Wisconsin Legislature v. Palm, including, but not limited to: limitations on the number of persons in a given confined space; requirements for social distancing; limitations on mass gatherings; and basic safeguards for businesses to protect employees and visitors.​​


  • Turning the dial toward reopening the economy and support of the Wisconsin economy without creating undue risk of spreading the virus and thereby causing additional long-term economic disruptions.

    • ​The "proposed rule" may establish a phased approach to reopening Wisconsin’s economy and society, with each phase being incrementally less restrictive on businesses and individuals while protecting the public from COVID-19.


In addition to meeting the objectives above, the "proposed rule":

  • may model Wisconsin’s phased reopening plan on federal guidelines that suggest states take a phased approach to reopening

    • ​federal guidelines recommend a three-phase approach with a focus on a downward trajectory of symptoms and cases, and having robust systems in place for the State of Wisconsin’s hospitals


  • may look at other models and guidelines for social distancing and reopening Wisconsin, including the approaches taken by other states


  • will recognize that opening up the economy without thoughtful evaluation of the risk of infection to Wisconsin citizens could cause the rate of infection to spike, deteriorating the progress that has been made, and potentially triggering extensive spread of COVID-19


  • will implement measures to reduce and slow the rate of infection of COVID-19 and reduce strain on the health care system

According to the Statement of Scope, the following entities may potentially be affected by the proposed rule:


  • Wisconsin residents, at large

  • Wisconsin businesses

  • Wisconsin non-profit organizations

  • Wisconsin schools and universities

  • Libraries

  • Public health operations

  • First responders

  • Tribal and local governments  

  • The health care industry


The Process of Making a Rule


STEP 1:  Statement of Scope ("Statement"is developed.

STEP 2:  The "Statement" is approved by the Governor.


STEP 3:  The "Statement" is published.


STEP 4:  The "Statement" is open for public comment.

  • The public comment period will run for 10 days after the "Statement" is published and will likely run from May 18th through May 27th, 2020.

  • See Public Comment, below.

​                 ​

STEP 5:  A draft, including all the details of the proposed "rule", is published.​

  • The Administration can publish their draft on May 28th, 2020 if the "Statement" to be published on May 18th 2020.​

STEP 6:  The Joint Committee for Review of Administrative Rules (the "Committee") will review the proposed rule. 

  • The "Committee" will vote to approve, reject or send back to DHS for changes. 

  • If approved, the new rule could be in effect for up to 150 days and could be extended up to an additional 120 days.


Didn't the Supreme Court overrule this? Does DHS have authority to create this "rule"?


The majority opinion in Wisconsin Legislature v. Palm held that the Safer-at-Home Extension order was a rule subject to statutory emergency rule-making procedures, and thereby affirmed DHS’s rule-making authority under Wis. Stat. § 252.02. The majority also held that certain provisions in the Safer-at-Home Extension went beyond what is authorized by particular subsections in Wis. Stat. § 252.02, but did not define the precise scope of DHS’s authority under that statute.

DHS has been given authority under state law to “promulgate rules as necessary for the control and suppression of communicable disease in this state, including COVID-19, and for the quarantine and disinfection of persons, localities, or things infected or suspected of being infected by COVID-19. DHS further has clear, broad, and explicit authority to close schools and forbid public gatherings in schools, churches, or other places.”

Read the Supreme Court Ruling here.

Public Comments



Public comments are an important part of the rule-making process. They offer the opportunity for all people, not just lawmakers, to participate in the drafting and refining of laws. Rejecting tyrannical, or closed government decision-making processes, a constitutional democracy allows for participation of the people in the rule-making process that extends beyond voting.

We encourage everyone to contact a member of the Joint Committee for Review of Administrative Rules.


A list of "the Committee" members and their contact information can be found here.


It's important for your voice to be heard and understood by the members of "the Committee" so that your opinion can be considered.

To be sure your opinion is heard: 

  • Be as clear as possible

  • Use clear organization and formatting, and precise language 

  • Give examples of how the virus and the prior Safer at Home Orders, including the Badger Bounce Back, have affected you, your family, your employment and/or your business

  • Explain how you think a similar rule will affect you, your family, your employment and/or your business 

  • If you refer to outside material in your comment, cite or include sources

It can be assumed that comments will not be considered if they contain any of the following:

  • Hate speech

  • Profanity, obscenity or vulgarity

  • Defamation to a person, people, or organization

  • Name calling and/or personal attacks

  • Spam comments, such as the same comment posted repeatedly on a profile

  • Comments whose main purpose are to sell a product

  • Inappropriate or unrelated links

  • Comments that infringe on copyrights

  • Other comments that "the Committee" deems inappropriate​

The contact information for "the Committee" members can also be found here.


Strive Tax & Accounting, LLC would like to extend our appreciation to State Representative Jim Steineke for taking his time on Sunday to assist us in understanding the current status of the future proposed emergency rule, as well as the process of enacting the proposed rule.

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